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An In-Depth Discussion of Domestic Law & Non-Traditional Families

According to the North Carolina General Statutes, a custody action may be initiated by any "parent, relative, or other person, agency, organization, or institution claiming the right to custody of a minor child." N.C.G.S. Section 50-3.1. North Carolina case law has interpreted this statute to grant standing to a parent, to a person with a parent-child relationship with the child, and to a grandparent who alleges parental misconduct.

When an Order relating to the custody of a minor child is in place, it must be shown that there has been a "substantial change in circumstances." At the same time, the Court will always keep an eye on what is in the "best interests" of the minor child. When there is no preexisting Order in place, the "best interests" of the minor child is the standard under which the Court labors. Thus, if proper jurisdiction exists, the guiding principle in all custody or custody modification decisions is that custody will be granted to the parent, person, or institution "as will, in the opinion of the judge, best promote the interest and welfare of the child." N.C.G.S. 50-13.2(a).

In North Carolina, we have something called the Fourteenth Amendment Right, or the "Peterson Presumption." Simply put, a parent has a Fourteenth Amendment of the United States Constitution right to care for and nurture her child. Peterson v. Rogers, 337 N.C. 397 (1994). Furthermore, in North Carolina, as in a majority of the other states, this principle gives rise to a presumption that in a dispute between a parent and non-parent, the parent prevails. In fact, the North Carolina Supreme Court has specifically held that in a custody dispute between a parent and a non parent, the parent must prevail unless the judge finds that the parent is unfit, has neglected the child, or has engaged in conduct inconsistent with the parental status. But beware because a parent can not just remain silent. For instance, in a custody dispute between a parent and non-parent, if the parent asserts his Fifth Amendment right to not testify in response to questions about parental fitness, the Court may dismiss his custody claim. Qurneh v. Collie, 122 N.C. App. 553 (1996). It is also interesting to note that a parent who is found to be fit at one time can subsequently be found unfit upon evidence of her failure to follow the terms of an Order. For example, if he/she fails to follow guidelines relating to substance abuse, or the minor child's developmental problems or obtains DWI convictions, the parent may be found unfit.

When the Court is making a determination of the fitness of a parent in a custody dispute against a non-parent, the parent's conduct is examined on a case-by-case basis. In general, the Court will be looking for unfitness, neglect and abandonment as a basis for any ruling which removes custody from a parent. However, in some circumstances, there are some types of conduct that are inconsistent with the role of a parent and this could form the basis of the Court's decision. It is important to note that for conduct to be inconsistent with a parent's protected status, the conduct must have some impact on the child. For example, the Court may find inconsistent conduct when the parent endangers the well-being or life of the child by use of alcohol and carrying the child in the car as a passenger. Owenby v. Young, 150 N.C. App. 412 (2002). Most often, the cases on inconsistent conduct involve situations where the parent gives up custody to a non-parent for a period of time. Here the Court may consider such things as whether the non parent custody was voluntary or involuntary, whether the parent clarified that the arrangement was temporary or permanent, how much contact and financial support the parent maintained during the period, how long the non-parent custody lasted, and whether the parent conveyed to others that the interim family unit was in fact the family of the child. Furthermore, if the non-parent custody is the result of the parent failing to seize the opportunity to become involved as a parent, the Court may find conduct inconsistent with the parent's protected status under the Fourteenth Amendment. Adams v. Tessener, 354 N.C. 57 (2001). If the Court's ultimate determination is that the parent has acted inconsistently with his/her parental status, and therefore, has lost the right to custody, it will apply the best interests standard in determining custody for the child elsewhere.

As an aside, the North Carolina Supreme Court has hinted that in a case where just one factor might not suffice, a combination of factors may support a conclusion of conduct inconsistent with a parent's protected status. Speagle v. Seitz, 354 N.C. 525 (2001). Furthermore, the Court has held that "unfitness" is to be determined by looking at the "totality of the circumstances". Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655 (1996).

The bottom line on third party rights to custody and visitation is that there is a paramount right of biological parents to have custody of their children. Thus, absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody, care, and control of their children must prevail over the rights of third parties in an initial custody determination. Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994).

Who Can Be A Third Party

So, who is a third party? Grandparents generally have standing to sue for custody of their grandchildren if they allege parental unfitness or child neglect, even if there is no ongoing custody dispute. Sharp v. Sharp, 124 N.C. App. 357 (1996). However, beware of the following distinction: Although grandparents may have standing to seek custody, they may not have standing to seek visitation under analogous circumstances unless there is an ongoing custody dispute. What does this mean? The North Carolina Supreme Court has interpreted the grandparent visitation statute to grant standing only if there has been a custody order entered or there is an ongoing custody dispute and the family is no longer intact. In fact, the North Carolina Supreme Court has refused to allow grandparents to seek standing in the intact family. McIntyre v. McIntyre, 341 N.C. 629 (1995). What is an intact family? Well, according to the Courts, a family may be intact if it consists of a single parent with children. And therefore, if that parent has no ongoing custody dispute, the grandparent does not have standing to seek visitation. Fisher v. Graydon, 124 N.C. App. 442 (1996). Furthermore, even if the parents are separated, the grandparents will lack standing if there is no ongoing custody dispute. Montgomery v. Montgomery, 136 N.C. App. 435 (2000).

Under current North Carolina law, grandparents may be granted visitation rights, but they must carry the burden of proving that such visitation would be in the child's best interests. N.C.G.S. Section 50-13.2; Kerns v. Southern, 100 N.C. App. 664 (1990). This can be a high hurdle to overcome as the United States Supreme Court has held that as long as a parent is fit, that parent's judgment as to the appropriateness of grandparent visitation must be given special weight. In this vein, a judge may not override a fit parent's decision regarding third party visitation merely because he feels a better decision could be made or visitation would be in the best interests of the child. Troxel v. Granville, 530 U.S. 57 (2000).

What other persons may seek custody or visitation rights? A North Carolina statute seems to read as if anyone has standing to seek visitation. N.C.G.S. Section 50-13.1(a). However, the North Carolina Supreme Court has held that persons unrelated to the child have no such standing. In fact, the court has noted in statutes involving custody and visitation, only parents and grandparents are specifically mentioned as persons with standing to seek visitation. Peterson v. Rogers. Nonetheless, in at least one case, a court has assumed a broader rule of standing for those seeking visitation that includes former stepparents. Seyboth v. Seyboth, 147 N.C. App. 63 (2001). Furthermore, the court has ruled that those who are in a well established relationship with the child in the nature of a parent-child relationship also may have standing to seek custody. For example, the courts have ruled that a father's companion of five years who lived with and cared for the child had standing to seek custody. Ellison v. Ramos, 130 N.C. App. 389 (1998).

Paternity Issues

Many times in custody or child support actions, third parties may raise questions about paternity. The North Carolina statute on blood testing, section 8-50.1, directs that the Court shall enter blood testing upon motion. However, the North Carolina Supreme Court has decided the statute does not give a putative or potential father the right to force the husband, who is always the presumed father under North Carolina law, to undergo blood testing. In other words, the husband is entitled to rely on the presumption that the child of the marriage is his. Johnson v. Johnson, 343 N.C. 120 (1996). Furthermore, the Court of Appeals has given even more significance to this presumption by concluding that it can not be overcome unless someone else has acknowledged paternity or has been adjudicated the father. Jones v. Patience, 121 N.C. app. 434 (1996).

Adoption and Third Party Visitation

In the case of stepparent or relative adoptions, grandparents can establish visitation rights if a substantial relationship exists between the grandparents and the child. N.C.G.S. Section 50-13.2 through Section 50-13.2A. The grandparents have standing to seek visitation in a family adoption even though there is no ongoing custody dispute, but the again the grandparents must prove that visitation would be in the child's best interests. Hill v. Newman, 131 N.C. App. 793 (1998).

Modification

If a non-parent attempts to modify a custody order that granted custody to a parent, the Peterson presumption requires the non-parent to prove that a substantial change in circumstances affecting the child has occurred and that the parent is unfit or guilty of other conduct inconsistent with the parent's protected status as a parent. If the non-parent proves a substantial change, thereby overcoming the presumption, then the best interests standard will apply.

On the other hand, if a parent tries to modify a custody order that recognizes custody in a non-parent, whether or not the Peterson presumption applies will be evaluated and determined based on the circumstances under which the parent came not to have custody. For example, if the parent lost custody to the non-parent in a previous custody order, then the Peterson presumption will not apply. In that case, the parent will have to prove a substantial change in circumstances affecting the child in order to modify the existing order. Next, the Court will apply the best interests test with no presumption that the parent should prevail. Similarly, if the parent previously agreed to voluntarily relinquish custody to the non-parent, and the agreement has also become part of a court order, then the same steps are taken. If a motion to modify is set in motion by the parent, the parent must always begin by establishing that there has been a substantial change in circumstances affecting the child. And, as you might expect in this scenario, the parent will not be favored by the Peterson presumption against the non-parent. Thus, custody will be based solely on the best interests of the child.

However, if the parent has never lost custody to a non-parent by an order granting custody to a non-parent, through an agreement or otherwise, then the parent will still be able to take advantage of the Peterson presumption.

Third Party Duties Of Support

When do third parties have a duty to support a child? Stepparents have a duty of support only while they are acting in loco parentis. What does this mean? Simply put, it means when a stepparent has acted in place of the parent or like a parental figure. However, they may also obligate themselves by agreement for a greater duty of support. The Court will enforce an agreement for child support entered into by the stepparent only if the agreement meets the formality requirements of other agreements spouses make between themselves on a routine basis, such as the requirement that the agreement be acknowledged. Moyer v. Moyer, 122 N.C. App. 723 (1996). The trial court will not use the child support guidelines to compute the amount representing the support to which the stepparent has agreed. Duffey v. Duffey, 113 N.C. App. 382 91994). Furthermore, if a parent seeks a child support award from a stepparent under an incorporated agreement, the court must first determine whether the natural parent has the ability to pay.

Under certain situations, grandparents may have to share primary liability for the support of the grandchildren. For example, when a minor has a child, the minor's parents will have to share primary liability for their grandchild's support until the minor parent reaches eighteen (18) years of age or becomes emancipated. The court will divide the support needed among the parties. If both parents were minors at the time of the child's conception, the parents of both minor parents will have to share primary liability for their grandchild's support. If one of the parents is a minor and the other is an adult, both sets of grandparents will be liable for any child support arrearage the adult parent accrues until the minor parent reaches 18. N.C.G.S. Section 50-13.4(b).

Homosexual Relationships

According to North Carolina General Statutes Section 51-1.2, marriages between persons of the same gender are not valid. However, this does not mean that lesbians and gay men will not continue to become parents. The problem lies in that North Carolina law does not permit second parent adoptions by unmarried couples. What does this mean? It means that any child born to same-sex parents has only one parent with any legal custody rights or a legal obligation to provide child support. Therefore, as the law stands now, same-sex parents must rely on legal documents to create their rights and obligations as they are not afforded the automatic parental status like married couples of the opposite sex.

Based on the current status of North Carolina law, it is important that people in same-sex relationships enter into a parenting agreement. A parenting agreement is simply a contract between two people which sets forth the expectations of the parties and their intent that they raise the child as equal parents. This expression of intent says to the world that it is the wish of the parties that the biological or adoptive parent and the parent with no legally recognizable parental rights share custody of the child. Of course, like any other contract, there must be consideration. In this case, the consideration given by the adoptive or biological parent is that he or she will share custody of the child with the other party. For the party with no legally recognizable rights, the consideration comes by that party agreeing to be financially responsible for the child under the provisions of North Carolina's child support laws. Admittedly, the enforceability of a parenting agreement between same-sex couples is in question. However, there is no doubt that a parenting agreement will inevitably go a long way toward improving the couple's chances of success in co-parenting. In addition, if a dispute does occur, the parenting agreement may be considered by the Court in determining the intent of the parties.

Although adoption by co-parents is currently not allowed under North Carolina law, there is hope on the horizon beyond parenting agreements. For example, some attorneys in North Carolina are planning to make the argument before the Court that second parent adoptions are legal and should be legal under Chapter 48 of the North Carolina General Statutes. Others believe a possible solution is for the parent with no legally recognizable parental rights to bring a "friendly" custody action against the biological or adoptive parent who has the legally recognizable parental rights. By a "friendly" custody action, we are speaking of a custody action where both parties are aware it is being filed and have the same outcome in mind. In theory, this lawsuit would be resolved through a Consent Order giving joint legal and physical custody to the child to the parent with no legally recognizable parental rights. This is the same type of action that is filed by parents of the opposite sex who wish to avoid having the issues of child support and child custody determined by the Court. Yet, because the ultimate result is a Consent Order recognized by the Court, it is enforceable as an Order of the Court through the contempt powers of the Court.

Another possible solution being discussed is a Declaratory action to determine who will be listed on the child's birth certificate as parents. Under this theory, a same- sex couple would utilize N.C.G.S. 49A-1 and 130A-101 to bring an action before or after the birth of the child asking that their names be placed on the birth certificate of the child just like an infertile same sex couple might do in a surrogacy situation.


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